About JoAnne Musick

JoAnne Musick is a criminal, juvenile and family lawyer and is board certified in both criminal and juvenile law. She is a two-time past president of HCCLA (the only president to serve two terms) and is active in many legal organizations including TCDLA. JoAnne is also a regular contributor at Fault Lines, HCCLA, and her own blog. Catch up with her on social media @joannemusick.

Why would someone plead guilty to something they didn’t do? Why would they confess and implicate a friend? Why would three people do the same thing?

It’s easy to say, “I’d never confess to something I didn’t do.” But in reality it’s never that easy. What if you were facing serious jail time? What if you were promised little to no jail time in exchange for your confession? What if you were facing the death penalty? What if you were promised life without parole and the death penalty would be off the table? What if you were threatened or physically assaulted? Is your response still easy? Would you still hold out on principle?

Of course prosecutors and cops maintain that no one was pressured, threatened, or physically assaulted, yet, three once cooperating and confessing co-defendants now say they were threatened and coerced and even assaulted into confessing and implicating their friend. Because of their confessions, they were promised a probation deal in exchange for their testimony against their friend. A judge now says they are innocent, the same judge who previously presided over the original trial.

Richard Kussmaul was convicted of capital murder for the deaths of two people. James Edward Long, Michael Dewayne Shelton, and James Wayne Pitts Jr. each confessed to their role as rapists and co-conspirators in the murders. Leslie Murphy and Stephen Neighbors were both shot to death in 1992. Leslie Murphy was also raped. Long, Shelton and Pitts further testified during Kussmaul’s 1994 trial that all four of them raped the girl before Kussmaul shot both victims in the back with a high-powered rifle. Following his conviction, Kussmaul’s conviction was affirmed by an appellate court finding that other evidence sufficiently corroborated the co-defendants’ testimony. [Texas requires a co-defendant’s testimony be corroborated by sufficient evidence that establishes more than just the crime occurred.]

Though forensic DNA testing first made its way into law enforcement as early as 1987, technological and procedural advances in the sciences developed over time. Scientific methodologies changed. Testing became more common and more precise. Newer technologies allow crime labs to analyze shrinking quantities of DNA.

In light of technological advances, Judge George Allen found newly discovered DNA evidence that was not available at the time of the trial constitutes clear and convincing evidence that no reasonable juror would have found the defendants guilty. In other words, the DNA evidence recovered from the victims in this case cleared all four defendants, including those who confessed, and implicated at least two unknown males.

Judge Allen wrote that an unknown man’s DNA was found on a number of clothing items from the victims and that the four defendants in the case were excluded as contributors of the DNA.

Allen also noted that a hair that couldn’t have belonged to the four defendants was collected from the victims’ bodies.

Though the trio testified against Kussmaul, they recanted their confessions soon after they were each sentenced to 20 years in prison for sexual assault. All three testified this summer that former McLennan County Sheriff’s Detective Roy Davis “threatened them with the death penalty and coerced them into signing 15-page confessions that he wrote.” They all stated they were also promised a plea deal for probation in exchange for their testimony against Kussmaul. Though they had plea deals for probation, Judge Allen rejected those deals and sentenced each to 20 years in prison – the maximum for their charge of sexual assault.

“I was willing to say anything they wanted me to say because I thought I was getting probation and no prison time,” Long said. “I had two small children and I was afraid of going to prison for life or, worse, getting executed.”

Though the judge heard the testimony and sentenced these men to 20 years each, he now finds their recantations credible.

“The probative value of the testimony given by Long, Pitts and Shelton at Kussmaul’s trial is outweighed by the persuasiveness of the physical evidence . . . for two primary reasons,” the judge wrote.

“The plea bargains offered to Long, Pitts and Shelton created a powerful incentive for each of them to falsely admit culpability, and material inconsistencies between and among the statements made and testimony given by Long, Pitts and Shelton call into doubt the veracity of those prior incriminating statements.”

Yes, in light of the physical evidence, the DNA clearing these men, it’s much easier to see how and why they each would have falsely confessed. Additionally, the material differences between the confessions and their testimony cast doubt on their then truthfulness. Without the DNA evidence, much like during the Kussmaul trial, false confessions are much easier to believe.

Undoubtedly, jurors heard about the plea deals offered to these three men during the Kussmaul trial. Yet, they still found their testimony credible and worthy of convicting Kussmaul. Surely the jury also heard about the material differences between their confessions and their trial testimony. Any good defense lawyer would have pointed out those inconsistencies and differences. Yet, what we as defense lawyers fear most occurred: you can’t un-ring that bell. It’s rare that jurors will set aside testimony that is given in exchange for a plea deal. It’s rare that jurors will disregard a confession. Jurors are all too likely to believe no one would confess to a crime he didn’t commit. Much less three people. Even you; you wouldn’t confess to a crime you didn’t commit, right?

A local man stood his ground despite the severe consequences. Imagine being ordered out of your own home and then forcibly removed, handcuffed, and arrested when you refused. Imagine then spending just over two months in jail. Imagine losing your job, car, and almost your home. All because you didn’t immediately yield to a police officer telling you to leave your home. A home is a man’s castle, until apparently, the police decide you should leave. Gilbert Cruz lived that nightmare that we can only imagine.

Police arrived at Cruz’s home after a former neighbor, who recently became homeless, called police claiming he wouldn’t allow her to stay with him. The neighbor further accused Cruz of assaulting her.

Forget about the Fourth Amendment – the right to be secure in your person and your home. It’s supposed to protect you from an unlawful seizure – the taking of your body by the police. Especially, inside your own home. We often think of the Fourth Amendment as protecting against unlawful searches of your person and your home, but it also protects against unlawful seizures.

The Harris County Sheriff’s deputy who arrived certainly forgot about the Fourth Amendment. He told Cruz to leave the home so he could conduct an investigation and interview the woman in private. When Cruz explained the woman did not live there and that he did not feel comfortable leaving his own home, the deputy forcibly removed him. Then arrested him for interfering with his investigation.

His case was eventually dismissed when a prosecutor agreed he had not interfered with the officer’s duty to investigate. Having Cruz leave his own home was not the answer to how to interview the woman in private. Certainly, the officer could “ask” him to step out. But barring his acquiescence, the officer cannot demand he leave his own home absent a warrant or some other legal circumstance. So the deputy created his own – he placed him under arrest for interfering with his public duties. That’s not “interfering with the duties of police officer”; it’s pissing off the police for not doing whatever he wanted! So Cruz might have avoided the wrap, but he wasn’t going to avoid the ride…or the consequences of two months in jail waiting to clear his name.

In Texas, a person commit the offense of interfering with public duties if he interrupts, disrupts, impedes, or otherwise interferes with a peace officer while the peace officer is performing a duty or exercising authority imposed or granted by law.

Of course it is an officer’s duty to investigate potential criminal activity. But his ability to investigate is not unfettered. He cannot simply order a person out of his own home to perform his investigation. The officer generally cannot even enter the home to start an investigation absent an invitation into the home. Even where invited inside the home, the officer cannot just start ordered occupants of the home to leave. If he wanted some privacy to interview the woman, he could have asked the woman to step outside. Officers often conduct interviews in their mobile offices. Yes, it’s not uncommon to have a person come sit out in the police car to give a statement or answer questions.

The tragedies of this story are Cruz being arrested, sitting in jail for months, losing his job and car, and almost losing his home. Sitting in jail, even for the innocent, has devastating consequences. But the tragedy doesn’t stop there. What happens when officers violate the Fourth Amendment? Usually nothing. Unreasonable searches and seizures (arrests) are unconstitutional and more common than you could ever imagine. They occur daily. We trust cops to determine who is a bad guy and who isn’t. But what happens when they get it wrong? Sure, the evidence is suppressed or the case is dismissed, just like here, but is that enough? Should the officer be accountable? How does Cruz get his job back? How does he undo his car being repossessed? What about the late fees he incurred because he was sitting in jail waiting for justice? How does he get back that time spent in jail waiting on the system to right the wrong and dismiss his case?

Some people won’t care. They will think he should have just stepped outside and let the officer talk to the woman. Yes, he could have. But why should he have been forced out of his own home at the hands of a law enforcement officer? Law enforcement officer. There’s a catchy term. He’s there to enforce the law. And, of course the law says people are to be secure in their persons and homes. I guess we just want some laws enforced.

Some people will think Cruz just should have just posted bond and got out of jail. If it were only that easy. Many people live paycheck to paycheck and don’t have the $2,500 to deposit with the court. Many are not capable of posting a bond or even hiring the services of a bondsman. Yes, a bondsman only charges about 10% of the bond, but imagine not having $250 to scrape together just to fight for your Fourth Amendment right to be free from an illegal seizure. If only the deputy had followed the law. If only the deputy had respected the Fourth Amendment instead of arresting Cruz for disregarding his bogus order to step outside and give him some privacy. Imagine that: being arrested because a police officer wanted privacy inside your home. Crazy huh? But very real.

Maybe it’s really old school, but people used to say “he paid his debt to society” when someone was released from jail or even prison. The idea was that the incarceration was the debt he owed for his transgression against the rules; his subsequent discharge was the release from that debt. Today, it seems no debt is actually discharged. There is no real second chance for those released from prison. If a sentence is held against a person forever and always, is a person’s debt to society really ever paid in full and discharged?

Recently, Eric Dexheimer, an investigative reporter for Austin’s American-Statesman, uncovered records showing the Texas Department of Public Safety routinely denies job licenses for applicants with minor offenses in their past. Many jobs in Texas (even non-government jobs) require some sort of license: barbers, bingo callers and workers, tow truck drivers, air conditioning contractors, pawnbrokers, and even athletic trainers, to name just a few.

Friday, July 22, 2016

Under Texas law, some criminal convictions become an automatic ban to getting or keeping a particular state required license. However, in other cases, the Texas Department of Public Safety, one of the agencies tasked with approving or denying certain applications, has discretion over whether or not to issue the license. Yet, DPS rarely exercises that discretion and instead simply denies licensing.

The Texas Occupations Code sets general rules for the licensing of plumbers, cosmetologists, boxing promoters, pawn shop owners, air-conditioning contractors and so many more. Depending upon the type and severity of the conviction, licensing may be denied or suspended. This leaves these folks out of work and unable to meet their financial obligations.

Take the case of Christopher Owen:

According to court records, the Tarrant County man “had gone from owning his own oil and gas company to becoming homeless. His home was destroyed by fire, he learned that his wife was having an affair and they divorced, and his mother died.”

On Nov. 23, 2014, cold and wet, Owen was rummaging through a Goodwill donation drop-off trailer when his lousy streak continued, records show. He was spotted and arrested for burglary of a vehicle for taking a pair of socks. The value of his theft — his only criminal record — was less than $5.

Owen’s short stay in jail appeared to be a pivotal point. He turned his life around, records show, finding work with a security company whose owner described him as “honest, productive and valuable to the company.”

Yet late last year when he applied for a state license to sell alarm systems for the security company, the Texas Department of Public Safety rejected his application, citing the hosiery heist.

Experts agree that maintaining gainful employment is crucial to reintegration into society after “serving a debt”; yet, DPS rejects these types of licenses.

In yet another example, take Krystal Turner’s case:

The DPS was equally unsympathetic to Krystal Turner, who in late 2011 was homeless when she ducked into an abandoned house near the University of Texas. The next morning she was arrested for criminal trespass. She was sentenced to 15 days in Travis County Jail.

Still homeless after her release, Turner said she camped along the Colorado River. She later began house-sitting and, in 2013, finally found permanent housing through her church.

She soon found a job at a local lube garage. “When my sister played with Barbie, I always played with her car,” she said. “I was seriously born to work on cars.”

In November 2015, Turner was promoted to store manager at another shop, supervising four employees and managing the outlet’s cash and credit transactions. She started attending Austin Community College classes. Court records show she is “a straight-A student, is in the ACC honors program, and has been nominated for a national scholars program.”

Turner said she has a year and a half until she earns her Master Automotive Service Excellence certification. She serves on a campus ministry.

“Her honesty and work ethics are impeccable,” her boss said.

Yet when Turner applied for her state vehicle inspector’s certificate because the garage was having trouble hiring enough inspectors to keep up with demand, the DPS denied her, citing the trespassing conviction.

What’s even sadder is that DPS is basically the only and final authority for these decisions. Despite an appeal process, DPS remains the final authority. Applicants can appeal the denial of a license to the State Office of Administrative Hearings, but the administrative judge is only permitted to make a recommendation to DPS should it disagree with the denial. DPS is free to accept or reject the judge’s recommendation to issue a license.

DPS cites “public safety” as its reason for denying licenses. But what about the cases, like those cited, that involve minor offenses and true rehabilitation? Why wouldn’t we want citizens back at work and contributing to their families and society? Denying skilled jobs can leave the individual without a means to support himself or his family. He becomes a drain on society rather than a contributing member. And, the job loss is only the tip of the iceberg to collateral consequences.

With these types of rules and lack of discretion, it is nearly impossible for any one to actually pay their debt to society and reintegrate as a productive member and good citizen. It’s time to reform our system. It’s time to allow good citizens to rejoin society, especially after minor offenses.

Supporting a new era of criminal justice reform, the Washington Post reports state and local spending on prisons and jails has grown three times as much over the past three decades as spending on public education for preschool through high school, according to a new analysis of federal data by the U.S. Education Department. In their brief, researchers argued taxpayers and safety would be better served by redirecting investments from incarceration to public education:

“A variety of studies have suggested that investing more in education, particularly targeted toward at-risk communities, could achieve crime reduction without the heavy social costs that high incarceration rates impose on individuals, families, and communities.”

Expenditures for incarceration and education varied from state to state. In Texas, over the 33-year period studied (1979-2013), state and local corrections (incarceration) expenditures rose 850 percent – a staggering 668 percent greater than our increase in education spending.

It’s no wonder that we spend more on prisons and jails; we love to criminalize all problems. And since at least the 80s, penalties have been increasing, leaving people in prisons longer and longer. The combined effect is that the number of people incarcerated has quadrupled while spending had also increased by more than four times. Societal problems are addressed through more criminal statutes. Children are policed in schools; the schoolyard fight is no longer handled by the principal. Drug addicts are incarcerated rather than treated. Our jails have become the largest mental health facilities in the country. We fail to utilize legislative efforts to curb incarceration for non-violent offenders such as cite and release. Instead our local jail is one of the most violent in the nation, ranking number 3 in the nation for incidents of assault.

It’s not difficult to see the affect all this has had on our police departments. Dallas Police Chief David Brown concedes:

“We’re asking cops to do too much in this country” said Brown.

“Every societal failure, we put it off on the cops to solve” said Brown. He listed mental health, drug addiction, loose dogs, failing schools as problems the public expects ‘cops to solve.’

“Seventy percent of the African American community is being raised by single women, let’s give it to the cops to solve that as well” said Brown. “Policing was never meant to solve all those problems.”

Policing has increased because everything is treated as criminal. Rather than address societal issues, cops are called to “deal with the problem.” And officers are left with only one real solution: jail. If a parent is complaining their child is violent or aggressive, the child is removed from the home and placed in a juvenile detention center. If a homeless person, most often those who are also mentally ill, is a nuisance to a business, he is jailed for trespass.

Perhaps, as the Department of Education brief suggests, it’s time to reassess our spending. Focusing on our children is a step towards breaking the cycles of poverty and incarceration. Education is also a major key to the safety of our communities. Mass incarceration is not helping; in fact, it is hurting. And, we are no safer for it.

It’s time to stop and rethink our priorities as criminal justice reform takes center stage. It’s time to help people rather than simply house them in cages. It’s time to reinvest our resources into community programs and public safety rather than simply incarceration. The past three decades have shown us mass incarceration doesn’t work. Non-violent offenders can be helped rather than derailed by losing jobs, housing, and opportunities.

Are ethical lines really that blurry? Apparently so for Kaycee Jones. In 2014, stemming from her work as a prosecutor, Jones was reprimanded by the State Bar in the wake of a 2012 texting scandal. She and then sitting Judge Coker exchanged text messages during a trial. The messages suggested certain questions the State should ask. Jones, who was observing the trial, scribbled out the questions and passed them to the prosecutor trying the case in front of Coker. For her role in the ex parte communications, Jones received a public reprimand.

Now a district court judge Kaycee Jones again faces scrutiny for crossing those blurred lines. Jones is the subject of a complaint to the Texas Commission on Judicial Conduct alleging a violation of one of the most simple rules: be the judge or be the witness but not both.

Jones was elected to the 411th District Court, serving San Jacinto, Trinity, and Polk counties. As judge, she presides over criminal, family, and civil matters and performs various other judicial duties. Like in many jurisdictions, judges are assigned as the on-call magistrate for law enforcement during “no refusal” weekends. The on-call magistrate makes the process of obtaining a search warrant for blood more efficient convenient as those arrested for DWI refuse to blow. After all, we wouldn’t want to slow the justice train by having to look for a neutral and detached magistrate who can review an affidavit.

During the “no refusal” weekend in which she was on-call anyway, Jones decided she would take advantage of the police ride-along program. Under the ride-along program, prosecutors, judges, and other citizens often ride with police officers on their beat to observe police interactions first hand. Other than an appearance of impropriety, generally, there is nothing wrong with prosecutors and judges participating in the ride-along. The appearance of impropriety (you know, being on the same law enforcement team and all) is generally believed to be overcome by the sheer fact that anyone could participate in the ride-along and non-prosecutors can and do participate in ride-alongs.

Outside of the appearance, the general problem is that the judge or prosecutor becomes a witness to every arrest made. And certainly the rules prohibit the judge or prosecutor from handling any matter in which he or she is a witness. With prosecutors, it might seem the entire firm would suffer the same conflict, but alas that appears to be too burdensome and so an unofficial exception has been carved out to allow the office to prosecute cases in which its members are witnesses and/or complainants, but I digress.

Now, back to Judge Jones. During her ride-along while on-call for “no refusal” weekend, a DPS trooper needed a blood warrant signed. Of course, Judge Jones was on-call for such matters. Never mind that she was also riding in the trooper’s car and had witnessed the arrest and any law enforcement interaction that would have led up to the request for the warrant. Being on-call and all, Jones reviewed the facts and signed the warrant.

Oh wait, did I mention the magistrate is supposed to be neutral and detached? Those pesky rules keep getting in the way. Magistrates are required to be neutral and detached. Neutral, in that she is not supposed to take one side over the other; she is neither part of the law enforcement team nor the prosecution team. Detached, in that she is not associated with the facts or matters she is reviewing.

And therein lies the problem. Jones was neither neutral nor detached. She was part of the law enforcement team that night. She was in the patrol car. She was participating in traffic stops and arrests, even if that participation was limited to observation. She was also personally aware of the facts and circumstances as she was a witness to the facts presented in the affidavit for the search warrant. And she went even one step further: she told the trooper not to list her as a witness in the paperwork.

So much for her 2013 statement to the Texas Bar promising her misconduct would never happen again:

I fully appreciate the importance of impartiality of a judge in a trial.

I suppose she meant she wouldn’t text again. It’s good she qualified she could appreciate impartiality in trial. And, here she clearly was not in trial – just gathering evidence with the police for a future trial. Seems impartiality is a bit of blur…

Lest you think this is just about judges, think again! Prosecutors suffer from the same quagmire: do they want to be witnesses or prosecutors? They too love the ride-along. They want to be “part of the team.” They also want to be involved from the beginning. In Harris County, the vehicular crimes division sends a prosecutor to every accident that results in a death. They are there to supervise the collection of evidence. They are, in large part, part of the team and witness to what happens at the scene. Not only are they witnessing what occurs, they sometimes direct what occurs, adding thoughts and decision making. This can and should cause them and their office to be recused.

Perhaps it is time to leave the policing to the police! Let lawyers be lawyers. Let judges be judges. And just let the police do their job. They really don’t need your help.

Originally Aired: May 03, 2018Discussion: Caller discusses problems at DA intake and the decisions to accept cases that they can't or shouldn't prosecute. The DAO needs to properly use their resources. The low level marijuana cases aren't being prosecuted by the DAO and caller says DWLI and trespass cases should be treated the same way.

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